March 3, 2014 State Water Resources Control Board, c/o Michael Buckman

March 3, 2014
VIA E-MAIL
State Water Resources Control Board,
c/o Michael Buckman
[email protected]
Department of Water Resources,
c/o James Mizell
[email protected]
Regional Solicitor’s Office,
c/o Amy Aufdemberge
[email protected]
U.S. Bureau of Reclamation,
Paul Fujitani
[email protected]
Re:
Order Approving a Temporary Urgency Change in License
and Permit Terms and Conditions Requiring Compliance
With Delta Water Quality Objectives in Response to Drought
Conditions (In the Matter of Specified License and Permits of
the Department of Water Resources and U.S. Bureau of
Reclamation for the State Water Project and Central Valley
Project)
Dear State Water Resources Control Board Members and Agency Staff:
The State Water Contractors (“SWC”) on its own behalf and on behalf
of its member agencies, submit the following comments in response to the
Order Approving a Temporary Urgency Change in License and Permit Terms
and Conditions Requiring Compliance With Delta Water Quality Objectives in
Response to Drought Conditions, as modified on February 7, 2014 (hereafter,
“Order”).
The Order is a response to unprecedented hydrological conditions now
facing California, and it recognizes that the existing water quality objectives do
not account for the current extremely dry conditions and the impact on
beneficial uses. When it adopted the Bay-Delta objectives, the State Water
Resources Control Board (“Water Board”) considered “the beneficial uses of
water (municipal and industrial, agricultural, and fish and wildlife) based on a
set of assumptions about the State’s water supply, including the expected
DIRECTORS
David Okita
President
Solano County Water Agency
Dan Flory
Vice President
Antelope Valley-East Kern
Water Agency
Ray Stokes
Secretary-Treasurer
Central Coast Water Authority
Stephen Arakawa
Metropolitan Water District
of Southern California
Curtis Creel
Kern County Water Agency
Mark Gilkey
Tulare Lake Basin Water
Storage District
Douglas Headrick
San Bernardino Valley MWD
Joan Maher
Santa Clara Valley Water
District
Dan Masnada
Castaic Lake Water Agency
General Manager
Terry Erlewine
March 3, 2014
Page 2
variability of this water supply.” (Order, p. 4.) The Order acknowledges the “[f]low and salinity
objectives in the Bay-Delta Plan and D-1641 were developed based on historic hydrologic
conditions” and the “magnitude of the current drought was not considered in establishing the BayDelta objectives or in the terms and conditions contained in D-1641.” (Order, pp. 2, 4.)
The SWC appreciates the swift actions the Department of Water Resources (“DWR”), the
Bureau of Reclamation (“Reclamation”), and the Water Board have taken in an effort to mitigate
the drought’s impacts and to conserve limited water supplies. The Order provides necessary
adjustments to water right conditions for the State Water Project (“SWP”) and Central Valley
Project (“CVP”), to help ensure that the State’s scarce water supply is managed to maximize and
protect beneficial use with appropriate balances among the various beneficial uses. This water
year’s extreme conditions necessitate adjustments to the Projects’ water right terms and conditions,
to ensure reasonable and maximum beneficial use of a very finite water supply.
The SWC appreciates the Water Board’s willingness to take swift action. However, more is
required. In particular, the Order should be modified to further enhance opportunities to improve
water supply south of the Delta. The record dry conditions this year require policy decisions
determining the most critical needs for water, and identifying water management actions that can be
taken to meet those most critical needs under conditions not considered when the existing objectives
were established. The existing objectives should not be the benchmark for allocating water among
beneficial uses in this extraordinary year. To best serve the public interest, the SWP should be
allowed to take maximum advantage of every reasonable opportunity to capture water available in
the Delta for export pumping. The Order limits allowable export pumping and deliveries to
pumping for “health and safety” purposes and needs but does not define that term. The Water
Board should do so, to clarify both the application and legal and factual basis for the Order.
Further, we request that Water Board remove the 1,500 cfs limitation on export pumping in
Condition 1.b. of the Order. Finally, we request that the Water Board remove Condition 2 of the
Order, which reinstates Delta Outflow and DCC gate closure requirements when precipitation
events temporarily allow compliance.
Additional actions by the Water Board and other agencies will likely be necessary as we go
through the year, as the drought’s impacts become more widespread and more severe, and impacts
that may not even be anticipated today occur. It will require flexibility and adaptation, as
conditions change and opportunities arise, to fulfill the fundamental state policy established in
Water Code section 100 that the water resources of the State shall be put to beneficial use to the
1
fullest extent of which they are capable, in the interest of the people, and for the public welfare.
The SWC acknowledges the difficult challenges the drought creates, and urges the Water Board to
continue to take all necessary actions to mitigate the drought’s impacts on beneficial uses. The
SWC offer the following comments:
1.
Existing Conditions In SWP’s Service Area Are Dire
Many local public agencies that are SWC members face alarming water supply conditions in
their service areas, and there is no relief in sight for the foreseeable future. The member agencies
hold contracts to receive water from the SWP but for the 2014 water year, all SWP contractors have
1
To balance competing beneficial water uses, the Water Board should “be guided
by the policy that domestic use is the highest use and irrigation is the next highest use of
water.” (Cal. Water Code § 1254.)
March 3, 2014
Page 3
2
received an initial zero percent allocation. The SWP contractors have suffered low contract
allocations for many years preceding this drought, including a 65 percent or less allocation in the 6
3
out of the last 7 years.
The severe drought impacts communities that rely on the SWP as a water supply source.
Extensive crop fallowing is expected for may SWP member agencies, with negative impacts on
local economies. Groundwater basins, which are already declining in many areas, will be overtaxed
as communities increase groundwater pumping to meet the water needs of people and crops. These
impacts must be considered by the Water Board when deciding how to best protect beneficial use of
water and serve the public interest.
2.
The Water Board Must Define “Health and Safety Purposes And Needs” And Must
Justify Any Limitations On SWP Export Operations Arising From That Definition
Condition 1.b limits allowable export pumping to “the minimum pumping levels required
for health and safety purposes” and specifies that “[d]eliveries to “SWP and CVP export contractors
shall also be limited to health and safety needs.” (Order at pp. 13-14.) Hence, the scope of these
terms in application is critical to the effect of the Order. Yet what is encompassed within “health
and safety” is not defined in the Order. Furthermore, during the workshops held by the Water
Board, the board members were unclear about what was included in the health and safety
calculation.
A very narrow definition could greatly restrict allowable exports, while a broad definition
would not. Defining the scope of “health and safety” purposes and needs is essential not only to
understanding application of the Order, but also to evaluating the factual and legal basis for the
restrictions imposed by the Order. For example, a narrow definition may bring the Order into
conflict with contractual obligations, conflicts that will fundamentally interfere with the SWP’s
ability to operate.
A narrow definition may also conflict with the Governor’s Emergency Declaration and
Executive Order. The Emergency Declaration recognized a broad range of drought impacts
forming the basis for an emergency, including impacts to agriculture. Paragraph 8 of the Executive
Order directed that water be conserved upstream “to protect cold water pools for salmon and
steelhead, maintain water supply, and improve water quality.” The SWC fears that although the
Project’s water supply is allowed to be used for all Project purposes, the Water Board may decide
that agricultural uses are not “health and safety purposes and needs”, and will prohibit deliveries of
SWP water for agricultural use. There is precedent for allowing water for health and safety
purposes to include agricultural use. In 2007 the U.S. District Court in NRDC v. Kempthorne found
that risks to human health and safety include: “Adverse effects on agriculture, including but not
limited to, loss of jobs, increased groundwater pumping, fallowed land, and land subsidence.”
NRDC v. Kempthorne, 2007 U.S. Dist. LEXIS 91968, 35-37, 58-60 (E.D. Cal. Dec. 14, 2007).
2
On January 31st, 2014, DWR announced that all SWP contractors will receive a
zero percent allocation of their contractual entitlements.
(http://www.water.ca.gov/swpao/docs/notices/14-02.pdf)
3
See Notices regarding SWP contract allocations, available at
http://www.water.ca.gov/swpao/notices.cfm.
March 3, 2014
Page 4
A narrow definition may also be used to preclude SWP member agencies that have
conserved other water supplies through prior water management measures, from taking water. This
interpretation would fail to consider that certain service areas in SWC member agencies may have
to blend SWP water with local sources. It would also fail to account for the fact that some SWC
member agencies in turn furnish water to multiple public water suppliers, some of which have other
water supplies and others that do not.
3.
It Is Critical To Move Available Water South of the Delta
It is critical that the Water Board allow, and the Projects take, every opportunity to mitigate
drought impacts. South-of-Delta contractors have been and will continue to be disproportionally
impacted by limited water supplies and regulatory restrictions on export pumping. To protect
south-of-Delta beneficial uses, it is imperative that the Water Board consider and look to optimize
opportunities to allow for export pumping. For example, when rain events occur and boost surface
flows, increased export pumping should be allowed, to capture what limited water is available. At
this point, every available acre-foot of water has value and can help to mitigate the impacts to the
communities that depend on the Projects for their water supply.
The Order does not allow the Projects to take full advantage of opportunities that may be
presented by storm events. The Order sets the maximum exports at 1,500 cfs. (Order, pp. 13-14.)
In their February 14, 2014, Report to SWRCB on Export Amounts to Maintain Health and Safety
During Drought (“Report”), DWR and Reclamation stated they believe that “ultimately the
minimum health and safety export level at any one time will be a range and that 1,500 cfs is a
reasonable cap on that range.” (Report, p. 3.) The SWC does not agree that 1,500 cfs should be a
cap on export pumping. The 1,500 cfs number does not reflect water needs in the current extreme
drought conditions and may not be essential to protect listed fish species. For example, the
biological opinions applicable to Project operations allow pumping greater than 1,500 cfs,
depending, for example, upon distribution of protected fish within the Delta. The Water Board
should not set 1,500 cfs as a hard limit on allowable exports, and should instead maintain flexibility
to respond to changing conditions and needs, in an effort to assist the Water Board in its decisionmaking in this unprecedented time.
4.
Condition 2 Of the Order Should Be Removed So That More Available Water Can
Be Moved South of the Delta
The SWC requests that the Water Board remove Condition 2. Condition 2 requires the
Projects to comply with D-1641’s Delta Outflow and DCC Gate Closure requirements when
precipitation events occur that enable the Projects to meet those requirements. (Order, p. 14.)
While it does allow the project pumping to exceed 1,500 cfs to pump natural and abandoned flow
available after meeting those requirements, Condition 2 reduces the volume of water that otherwise
could be pumped. Requiring compliance with the Delta Outflow and DCC Gate Closure
requirements this year is not in the public interest, given the very limited water supplies available to
support beneficial uses.
Condition 2 is essentially seeking to obtain a highly uncertain benefit for fish and wildlife
from what will be very temporary compliance with the Delta Outflow and DCC Gate Closure
requirements. This uncertain benefit comes at the cost of the certain and easily quantifiable loss of
water supply for beneficial uses, or additional water storage south of the Delta.
March 3, 2014
Page 5
5.
Curtailment Notices Should Be Issued
The Water Board should issue Water Diversion Curtailment Notices to prevent diversions
that are unsupported by water rights under the current hydrological conditions. The Order states
that “[f]ollowing persistent dry hydrologic conditions, the Board plans to issue Water Diversion
Curtailment Notices to water right holders in water short areas in the near future.” (Order, p. 4.)
The SWC urges the Water Board to issue such Curtailment Notices and begin actions to enforce the
notices as soon as possible. In these hydrological conditions, there is very little, if any, “natural
flow” to support appropriative and riparian water rights and it is likely that many diversions are
relying on the Projects’ release of stored water. (See Order, p. 8 [describing how unprecedented
“depletions” on the Sacramento River and Feather River systems are resulting in further reductions
in the Projects’ storage to meet water quality objectives].) In addition to Curtailment Notices, the
Water Board should increase enforcement actions to ensure water is available for its intended and
authorized uses.
6.
Additional Actions Are Likely To Be Needed
Finally, SWC asks that the Water Board remain aware of the likelihood that additional
future adjustments to the Projects’ water right conditions will be necessary to respond to drought
conditions. The Order requires a minimum Delta outflow level of 3,000 cfs during February and
states that “[f]urther changes to Delta Outflows for the remainder of the season may be requested.”
(Order, p. 11.) Such “further changes” to Delta Outflows will likely be necessary. In addition,
“future requests for temporary changes could include requests for possible modifications of other
water quality objectives found in D-1641 Table 1 ‘Municipal and Industrial Beneficial Uses,’ Table
2 ‘Agricultural Beneficial Uses,’ and Table 3 ‘Fish and Wildlife Beneficial Uses.’” (Order, p. 6.)
As the Water Board is considering future actions it is critical that those actions be consistent
with California water law and water rights priorities. Furthermore, as the Water Board considers
additional actions it must carefully consider its jurisdiction and authority.
The SWC appreciates the swift actions of the Water Board, DWR and Reclamation to
mitigate the drought’s impacts and conserve scarce water supplies. SWC has concerns regarding
the Order, as discussed above. The severe hydrological conditions present challenges for the entire
State and the Water Board has the important responsibility to determine what is reasonable and in
the public interest when so little water is available to support beneficial uses. In striking that
balance, we ask that the Water Board give appropriate weight to the needs of the communities
served by the SWP.
Sincerely,
Terry Erlewine
General Manager